A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2022 10 19 COURT FILE No.: College Park, Toronto 20-75004274
BETWEEN:
HIS MAJESTY THE KING
— AND —
KRISHYANTH KUGARAJAH
Sentencing Judgment
Before: Justice B. Jones
Heard on: September 26, 2022 Reasons for Judgment released on: October 19, 2022
Counsel: C. Langdon........................................................................................... counsel for the Crown J. Prince........................................................................................... counsel for K. Kugarajah
Jones J.:
Introduction
[1] On September 9, 2020, Ms. P.K. arrived in Canada. She was a 19 year old international student from India who was forced into a mandatory 14 day quarantine due to the pandemic restrictions in place at the time. She had never been to Canada before and had no friends or family to assist her in the city. She was alone.
[2] She found herself residing in a room at a home being rented out as an Airbnb in downtown Toronto. There she met Mr. Kugarajah, who resided in an adjacent room. Over several days in September 2020, he preyed upon her vulnerability. Following a trial, I found him guilty of two counts of sexual assault (*Criminal Code* section 271), one count of forcible entry (*Criminal Code* section 72), one count of assault (*Criminal Code* section 265), one count of threatening death (*Criminal Code* section 264.1(a)(a)), and one count of forcible confinement (*Criminal Code* section 279(2)). P.K. was the victim of each of these offences.
[3] A sentencing hearing was held on September 26, 2022. Following the conclusion of submissions, the court took a short recess. When court resumed, Mr. Kugarajah did not return. One of his sureties, his uncle, Mr. H. Patkunarajah, informed me his nephew had no intention of coming back to court and he could not reason with him. Following some additional efforts by Ms. Prince to have her client return to court, I issued a bench warrant for his arrest.
[4] On October 5, 2022, Mr. Kugarajah was located and arrested. He has been in custody since that date.
Facts
[5] My reasons for convicting Mr. Kugarajah were reported at 2022 ONCJ 291. I provide the following summary of my findings here.
[6] With respect to the sexual assault counts, I found Mr. Kugarajah forced intercourse on P.K. on two occasions in September 2020. The first time he entered her room and began to kiss her. He overpowered her and removed her clothing. She pleaded with him to “please, stop” but he persisted. He attempted to penetrate her anus with his penis causing her pain and then engaged in vaginal intercourse as she resisted. He did not wear a condom. After the assault, he threatened to have her deported as he pretended to have the authority to control her immigration status. Being new to Canada and relatively unsophisticated, she was fearful of this threat.
[7] For the second incident I found Mr. Kugarajah sexually assaulted her again in her room. He threw P.K. onto her bed and removed her clothing quickly. She cried out for him to “not do this.” He overpowered her as she resisted and forced vaginal intercourse on her. He did not wear a condom. After the assault, when she told him she would commit suicide, he slapped her on her cheek.
[8] On September 20, 2020, Mr. Kugarajah confronted P.K. in her room again. His conduct on this day resulted in his convictions for the remaining offences. I found that Mr. Kugarajah knocked on her door and she asked to be left alone. He left but returned later and knocked on her door loudly. She partially opened the door to speak to him and he pushed on the door and forced his way inside her room. He interfered with her peaceable possession of her room in a manner that caused a breach of the peace. She was scared and yelled at him to leave.
[9] He slapped her across the face when she told him to “go away.” She tried to leave her room to escape him, but he pushed her back and prevented her from exiting. She said she would call the police and he tried to intimidate her by telling her he could kill her. She was trapped in this situation for nearly 10 minutes before a food delivery person arrived which distracted Mr. Kugarajah momentarily. She was able to flee her room and seek help from the other male tenants in the building. During that time she was forcibly confined.
Victim Impact Information
[10] Ms. P.K. declined to file a formal victim impact statement.
Background of the Offender
(i) Pre-Sentence Report
[11] A pre-sentence report (“PSR”) was filed with the court. Mr. Kugarajah is 28 years old. He has no prior criminal record. He was born and raised in Sri Lanka and immigrated to Canada when he was seven years old along with his twin brother. He is a permanent resident of Canada.
[12] He resides in Brampton with his uncle. He has a twin brother and a younger sister. His parents separated when he was seven. He is currently estranged from his family except for his uncle with whom he has lived since he came to Canada. His uncle acted as his guardian when he was a child. The rest of his family members reside in Sri Lanka or India.
[13] His uncle had been supportive of Mr. Kugarajah. He informed the author of the PSR he believed his nephew lost his family connections when he came to Canada. He noticed behavioural issues with him when he turned fourteen. He stayed at shelters or friends’ homes and began using marijuana. He made poor life choices. His uncle believed that his twin-brother was at least partially a bad influence on him, but his twin has since returned to Sri Lanka. After Mr. Kugarajah absconded from the sentencing proceeding on September 26, Mr. Patkunarajah told the court he was finished with his nephew and would call the police the moment he located him. He was visibly upset that he could not control his nephew and seemed ashamed that he had fled from the sentencing hearing.
[14] Mr. Kugarajah did not complete high school. His uncle encouraged him to seek employment or upgrade his education, but Mr. Kugarajah refused. He currently receives social assistance and does not wish to follow his uncle’s suggestions. He informed the author of the PSR that he has no intention to find employment or further his education as he lives his life “day to day.”
[15] He admits to having used cocaine over the past ten years. He has not taken counseling or treatment for drug addiction but is trying to control his cocaine usage on his own. He expressed a willingness to comply with court ordered treatment or counseling. He has never had a prior diagnosis of mental illness. However, his uncle reported that Mr. Kugarajah overdosed and was admitted to the psychiatric ward of a hospital on two prior occasions.
[16] Mr. Kugarajah reports being “traumatized” by the allegations made by P.K. against him. He asserts that it was her who initiated contact with him when they resided together at 10 Fee Place. He has no intention of contacting her again. He hopes to move forward from this experience.
(i) CAMH Report
[17] The court ordered a report under the *Mental Health Act*. It was completed by Drs. Eid and Dupré of the Centre for Addiction and Mental Health (“CAMH”).
[18] During the course of preparing their report, Drs. Eid and Dupré interviewed Mr. Kugarajah. The answers he provided to them on a variety of subjects were inconsistent with those provided to the author of the PSR. Other answers appear non-responsive to the questions asked or were implausible. These features of his interview make it difficult to determine which responses he gave were truthful.
[19] For example, he reported making money through “casinos and working at a factory” but he in fact receives payments through Ontario Works and is supported by his uncle. He claimed to not remember the name of his own mother, but then provided the name of a different woman who was acting as one of his sureties. He did not provide any description of his mother, stating “I don’t think it matters to be honest.” He would not provide any information about his father.
[20] He was evasive when asked who raised him as a child. He claimed it was “mostly himself” and that he could not remember. He stated he did not understand the question and then said he was raised by both his grandparents and his parents. He was unable to explain who lived with him as a child. He said he could not recall if he was in contact with his mother but stated he was in contact with his father over Facebook and a separate messenger app. He believed his twin brother was dead and did not know if either of his sisters were dead or alive.
[21] Mr. Kugarajah claimed to have experienced emotional abuse as a child. When asked to clarify, he stated that he “emotionally abused myself” by “not living in the real world.” He denied experiencing any physical or sexual abuse as a child.
[22] He thinks he failed all grades during his childhood education. He also informed the doctors he completed high school contrary to what was contained in the PSR. He claimed to have had “decent” academic performance but also that he began skipping school at age 10. He expressed confusion when asked if he was bullied and was unsure if he had ever been suspended or expelled from school. Ms. Wilfred provided information that Mr. Kugarajah completed one year of Centennial College studying aircraft maintenance before leaving the program after he began to use drugs.
[23] He provided several illogical and strange answers to the doctors. For example, when asked if he stole, he said, “I don’t know what that is.” He also said, “Off the record, I think I died last night.”
[24] He denied a history of gambling, despite stating initially to the doctors that he supported himself financially through casinos. Ms. Wilfred confirmed he did have a significant history of gambling. He described various forms of employment he had since he was 13. He asserted that he was working for the past ten years in an undefined partnership with a man he met in India, but was unable to provide any details. He could not reconcile this claim with his earlier admission he was unemployed and receiving social assistance.
[25] With respect to his relationship history, he stated he had been in a romantic relationship with himself for three hours. He was asked about relationships with other people and responded, “Romantic, what’s that?” He denied understanding what masturbation involved but also stated he masturbated while watching pornography.
[26] He also reported that he enjoyed watching pornography that depicted non-consensual sex “all the time.” He was asked if he had any interest in violent sex, nonconsenting partners, resistive partners, or rape, and stated, “I don’t think it’s possible, but also no.” He stated he saw child pornography “all the time.” He later asked to change his answer and denied any use of child pornography and denied having any sexual interest in children.
[27] With respect to his prior substance use history, he claimed to have started drinking alcohol at 13 years old. He currently drinks a half bottle of wine per day. He has used cannabis since 2012. He also endorsed a history of cocaine use between 2017 and 2020. He funded his cocaine habit through gambling proceeds. He has tried crack cocaine and crystal methamphetamine. He claimed to have used crystal meth six times, the last time being in 2021. He used MDMA, LSD (acid) and psilocybin (magic mushrooms.) He used both LSD and psilocybin the day before the assessment.
[28] Drs. Eid and Dupré examined Mr. Kugarajah’s prior psychiatric history in detail. On January 15, 2020, he was brought to Toronto Western Hospital after having been apprehended by the police under the *Mental Health Act*. He reported to emergency medical staff that he was going to kill himself.
[29] In October 2020 he was brought to Sunnybrook hospital after having been located walking around outside without any pants. He was involuntarily admitted to the psychiatry unit. He was diagnosed with Psychosis Not Otherwise Specified (NOS). He was initially found incapable to consent to treatment but after an appeal to the Consent and Capacity Board he was subsequently declared capable. He was discharged with follow up from the early psychosis services but did not attend any appointments.
[30] Ms. Wilfred noted that Mr. Kugarajah had a five-year history of mental health challenges including suicidal thoughts and increasingly confused and bizarre behaviour. His family doctor suggested treatment for his drug use many times but Mr. Kugarajah did not wish to attend any appointments. Mr. Kugarajah himself self-reported that he had been offered outpatient psychiatric follow-up on multiple occasions after being discharged from the hospital however he didn’t care for it and did not attend. He denied he had a family doctor.
[31] Mr. Kugarajah reported hearing voices, including the day prior to the assessment. He denied experiencing command auditory hallucinations or visual hallucinations but endorsed experiencing delusions of reference. He claimed to be a neurosurgeon when asked if he had a psychiatrist. When pressed for details on these subjects, the doctors found he would simply respond with evasive answers. In general, they concluded he was providing “vague, irrelevant or tangential answers to questions.”
[32] Despite having no formal criminal record, he claimed to have been convicted of “many things… I can’t remember but a lot.” When asked what crimes he had been convicted of, he said, “it’s really the mental infrastructure of my mind.” He only stated assault and witchcraft specifically.
[33] Drs. Eid and Dupré noted he had limited insight into his mental health and substance use history. Their opinion was that his symptoms were most consistent with the presence of multiple substance use disorders and substance induced psychosis. Cannabis, alcohol, and stimulant use are all associated with the potential for inducing psychotic symptoms. They also concluded that his presentation during the assessment was suggestive of malingering. This was especially the case during the sexual history portion of the interview. His conduct appeared exaggerated and inconsistent with typical presentations of psychosis.
[34] His psychotic symptoms could also be explained by an underlying primary psychotic illness. Monitoring him for ongoing psychotic symptoms during a period of sustained abstinence would assist a future physician in determining whether he suffered from a primary psychotic illness (e.g. schizophrenia.)
[35] The doctors were unable to rule out a coercive paraphilic disorder. Paraphilias are underlying problematic or deviant sexual preferences that may involve non-consenting sexual activity. Mr. Kugarajah denied having any interest in coercive sex or being aroused by a victim’s protests or the use of violence in the sexual offences. Yet they could not rule out such a disorder which may explain the offending behaviour.
[36] Drs. Eid and Dupré recommend that Mr. Kugarajah seek a psychiatric follow up. He should abstain from substances as they have been linked to violence and have been noted to induce and exacerbate mood and psychotic symptoms.
Sentencing Principles
[37] Section 718 of the *Criminal Code* describes the purpose of sentencing:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
a. To denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
b. To deter the offender and other persons from committing offences;
c. To separate offenders from society, where necessary;
d. To assist in rehabilitating offenders;
e. To provide reparations for harm done to victims or to the community; and,
f. To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[38] A sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”: *Criminal Code* s. 718.1. The degree of responsibility of the offender requires a consideration of the offender’s moral blameworthiness. Assessing that moral blameworthiness must be done through a process of individualization, including consideration of the offender’s life experiences: *R. v. Parranto*, 2021 SCC 46 at para. 12.
Aggravating and Mitigating Factors
[39] The following aggravating factors are present in this case:
- P.K. was vulnerable and isolated in the city at the time;
- Mr. Kugarajah took advantage of her while she was trapped in the same house as him;
- He sexually and violently assaulted her multiple times;
- He threatened to have her deported attempting to manipulate her fear and lack of knowledge of the Canadian immigration system;
- He assaulted her in her own room where she should have been able to feel safe and secure;
- She told him to stop each time but he continued with the sexual assaults; and
- He did not wear a condom when he committed the sexual assaults increasing the potential risk to P.K.’s health from a sexually transmitted disease or infection.
[40] Ms. Prince submits the following mitigating factors should be considered:
- Mr. Kugarajah has no prior criminal record;
- He has mental health concerns that require treatment; and
- He has family support in the community.
Position of the Crown
[41] Ms. Langdon seeks a sentence of 7 years’ incarceration. She submits that I should emphasize the sentencing principles of deterrence and denunciation. The sexual violence in this case had a significant impact on the victim. While she did not provide a victim impact statement, at the trial she testified that she became depressed and felt suicidal. She could not bring herself to tell her parents in India what happened to her. She was also extremely afraid that Mr. Kugarajah could truly have her deported.
[42] The assaults were a profound violation of her dignity and sexual integrity. Mr. Kugarajah also engaged in acts of gratuitous violence including overcoming her resistance with his greater strength and proceeding to sexually assault her even though she begged him to stop. The offences occurred in her own room where she should have felt safe and secure.
[43] While Mr. Kugarajah has mental health concerns, there is nothing mitigating about them as they do not explain how these offences occurred. Furthermore, he has not taken any steps towards his own rehabilitation as detailed in the PSR and CAMH report. That is not aggravating, but it should be considered the absence of a potentially very important mitigating factor.
Position of the Defence
[44] Ms. Prince seeks a global sentence of 3 years’ custody. Mr. Kugarajah served 13 days in pre-sentence custody after his initial arrest for which he should be credited 20 days. She submits that the Crown’s proposed sentence of 7 years would be excessive.
[45] She emphasizes that he has no prior criminal record, did not breach his release order pending the trial, and has significant mental health issues. She relies upon several cases. In *R. v. Quashie*, 2005 ONCA 23208 (Ont. C.A.) the appellant was convicted of one count of sexual assault and one count of sexual assault causing bodily harm. He was 21 years old at the time of the offence. The victim was 19. Both incidents involved forced intercourse. The sentencing judge considered the physical and psychological harm to the victim which were quite significant. The defence called fourteen witnesses to testify to his otherwise good character. The Court of Appeal upheld a sentence of 5 years’ custody. Ms. Prince submits the facts are arguably more aggravating than in the case of Mr. Kugarajah.
[46] *R. v. Dang*, 2021 ONSC 3056, the offender received a three year sentence for sexual assault and threatening death. The victim was a 19 year old student at George Brown College renting a room at a house. The offender was one of her roommates. He assaulted her in the house. Ms. Prince submits the facts are similar to this case, although the assault did not involve an act of forced intercourse.
[47] In *R. v. Herbert*, 2016 ONSC 3665, the offender was found guilty of eight counts, including sexual assault, assault, forcible entry, and uttering a threat. He grabbed the victim by the throat in the elevator of her apartment building, pushed her against the wall, threatened to kill her dog and then forced his way into her apartment. He consumed crack cocaine and then sexually assaulted her. The details of the sexual assault are not provided in the court’s reasons. The offender expressed remorse and had taken steps towards rehabilitation. A sentence of five years was imposed in total. There is no evidence Mr. Kugarajah’s assaults were influenced by the consumption of an illicit substance which distinguishes the two cases.
[48] Ms. Prince notes that in *R. v. Inshanally*, 2021 ONSC 3432 the offender had a prior criminal record and was on probation at the time. He was found guilty of four counts of sexual assault, one count of assault and one count of forcible confinement. The victim and the offender were in an intimate partner relationship. For repeated acts of forced intercourse, the offender received a 7 year sentence. The aggravating factors in that case were also not present in this case.
Sexual Assault
[49] In *R. v. Barton*, 2019 SCC 33, at para. 1, the Supreme Court of Canada wrote: “Without a doubt, eliminating … sexual violence against women is one of the more pressing challenges we face as a society.”
[50] *Criminal Code* section 718.04 requires a sentencing court to give primary consideration to the objectives of denunciation and deterrence for an offence that “involved the abuse of a person who is vulnerable because of personal circumstances – including because the person is Aboriginal and female.” Even in a case involving a youthful first-time offender, in cases of sexual violence, the court’s emphasis must remain on denunciation and general deterrence. These sentencing principles take on increasing significance as the seriousness of the violation of the sexual integrity of the victim rises: see *R. v. Thurairajah*, 2008 ONCA 91 at para. 42. Rehabilitation, while still important, takes on less weight accordingly: see also *R. v. Mohenu*, 2019 ONCA 291, at para. 12.
[51] Over thirty years ago, the Supreme Court of Canada commented on the devastating effects of sexual violence on women. In *R. v. McCraw*, 1991 SCC 29, [1991] 3 S.C.R. 72 at 83-84, the court wrote:
It seems to me that to argue that a woman who has been forced to have sexual intercourse has not necessarily suffered grave and serious violence is to ignore the perspective of women. For women rape under any circumstance must constitute a profound interference with their physical integrity. As well, by force or threat of force, it denies women the right to exercise freedom of choice as to their partner for sexual relations and the timing of those relations. These are choices of great importance that may have a substantial effect upon the life and health of every woman. Parliament's intention in replacing the rape laws with the sexual assault offences was to convey the message that rape is not just a sexual act but is basically an act of violence. See K. Mahoney, "R. v. McCraw: Rape Fantasies v. Fear of Sexual Assault" (1989), 21 Ottawa L. Rev. 207, at pp. 215-16.
It is difficult if not impossible to distinguish the sexual component of the act of rape from the context of violence in which it occurs. Rape throughout the ages has been synonymous with an act of forcibly imposing the will of the more powerful assailant upon the weaker victim. Necessarily implied in the act of rape is the imposition of the assailant's will on the victim through the use of force. Whether the victim is so overcome by fear that she submits or whether she struggles violently is of no consequence in determining whether the rape has actually been committed. In both situations the victim has been forced to undergo the ultimate violation of personal privacy by unwanted sexual intercourse. The assailant has imposed his will on the victim by means of actual violence or the threat of violence.
Violence and the threat of serious bodily harm are indeed the hallmarks of rape. While the bruises and physical results of the violent act will often disappear over time, the devastating psychological effects may last a lifetime. It seems to me that grave psychological harm could certainly result from an act of rape.
[52] Recently, in *R. v. A.J.K.*, 2022 ONCA 487, the Ontario Court of Appeal held that the forced penetration of another person will normally result in a sentence of between three and five years in a penitentiary. The Court stated the following about the terrible nature of sexual assaults, recognizing the continuing evolution of our collective understanding in this regard:
All sexual assaults are serious acts of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity, and dignity is harmfully impacted while being treated as nothing more than an object. Whether intimate partners or strangers, victims of sexual violence suffer profound emotional and physical harm and their lives can be forever altered. So too can the lives of their loved ones.
(See para. 74)
[53] In *R. v. Friesen*, 2020 SCC 9, the Supreme Court stated that sexual violence is morally blameworthy because “the offender is treating the victim as an object and disregarding the victim’s human dignity”: see para. 89. That description seems particularly apt in this case, as Mr. Kugarajah’s sexual abuse of P.K. took place even over her own protests and pleadings for him to stop. Yet he simply used her for his own sexual gratification and showed no compassion for her whatsoever.
[54] In *R. v. Ghadghoni*, 2020 ONCA 24, the appellant and the victim had been drinking at a nightclub. She was extremely intoxicated by the end of the night. They went to his parents’ home where she passed out. She awoke around 8:00 am and found him having sex with her. She told him to stop and he did not, insisting that she “hold on.” The trial judge found the victim was asleep when he first penetrated her in the morning, and she was therefore incapable of consenting. The trial judge imposed a 30 month sentence. The Court of Appeal reduced the sentence to two years less a day on the basis that the trial judge had erred in finding that the sexual assault was planned rather than impulsive: see paras. 51-52.
[55] While I cannot conclude Mr. Kugarajah’s offences were planned, for the second sexual assault, he had already victimized P.K. once and witnessed the devastating impact his crime had on her emotionally. Yet he sexually assaulted her again showing no remorse for his earlier actions nor any concern for his victim. His crimes were not entirely impulsive either. He had the opportunity to reflect upon his prior conduct and restrain himself. He did not.
[56] Where an offender has committed multiple acts of sexual violence the Court of Appeal has approved of significant penitentiary terms. In *R. v. Diabis*, 2020 ONCA 283, a seven year sentence was upheld. The appellant was convicted of three separate incidents of sexual and physical assault on the victim and one count of criminal harassment. He supplied her with drugs and money in exchange for sex. The appellant forced her to have anal intercourse on two occasions. On a third occasion, he pushed her onto her knees and demand oral sex. After she refused, he urinated on her.
[57] In *R. v. Quesnelle*, 2014 ONCA 634, the Court of Appeal upheld a total sentence of six and one half years. The appellant was convicted of two counts of sexual assault and two counts of assault relating to two separate victims. The facts are reported in the trial judge’s sentencing decision: see *R. v. Quesnelle*, 2010 ONSC 3713. The first victim was a prostitute. He punched her on the right side of her jaw and forced her to engage in anal intercourse. He purchased cocaine from the second victim. She refused to engage in sexual acts with him. He punched her with a closed fist on her right cheek and forced her to perform oral sex on him. He then sodomized her while wearing a condom.
[58] In *R. v. Richards*, 2010 ONCA 728, the appellant pleaded guilty to several offences including sexual assault, two counts of assault, and forcible confinement. The complainant told him she wished to end their relationship. Over the following week, he committed each of the crimes against her. The Court of Appeal reduced the global sentence imposed by the trial judge from seven and one half years to five years. The Court imposed a four year sentence for the sexual assault and one year consecutive for the count of forcible confinement, with concurrent sentences for the remaining counts.
[59] Inshanally, supra, a recent decision of the Superior Court of Justice is particularly helpful to my decision. Justice Woollcombe found the offender guilty of four counts of sexual assault, one count of assault and one count of forcible confinement. The victim and the offender were in an intimate partner relationship. On two occasions he forced her to engage in an act of sexual intercourse. On a third occasion he forced her to engage in sexual intercourse again. Following this act, he forcibly confined her in his car, and drove her around as he berated her and instilled fear in her. The Court imposed a global sentence of 7 years’ incarceration after considering the totality principle: see para. 42.
[60] Mr. Kugarajah’s decision to sexually assault P.K. after she pleaded with him to stop on both occasions is extremely aggravating. In *R. v. Garrett*, 2014 ONCA 734, the appellant was engaged in consensual sexual activity with the victim at first. The victim told the appellant to stop after she began to feel matters had escalated beyond what she wanted but he did not relent. He proceeded to force intercourse on her against her will. The Ontario Court of Appeal was emphatic that when an accused does not stop after being told to do so by a victim, that, by itself, constitutes “demeaning behaviour and contemptuous disregard for the personal integrity of the complainant and engages the predominant sentencing principles of denunciation and deterrence”: see para. 19.
[61] The Court of Appeal varied the sentence on appeal from a 90 day intermittent sentence to 18 months custody. It specifically noted that the sentence “should not be taken as a sentence within the appropriate or usual range.” Rather, the Court concluded it was constrained the position taken by the Crown at trial: see paras. 22-23. Furthermore, this case, like many of the other reported decisions I have referenced, were decided prior to the Court of Appeal’s very recent pronouncement in A.J.K.
[62] The sexual assaults on P.K. occurred in her own residence where she was isolated. They occurred in her own room where she should have been able to feel free from violence. In *R. v. Corbiere*, 2012 ONSC 2405, Pomerance J. held that the “targeting of the victim in her own home is a significant aggravating factor exacerbating the trauma and impact on the victim. The home is a protective haven; a place where we should all expect to feel safe”: see para. 44. Mr. Kugarajah rendered P.K’s room a place not of security and protection but rather a place where she feared she would be subjected to violence. She had nowhere else to seek refuge.
Assault, Threatening Death, Forcible Confinement and Forcible Entry
[63] On the final night of September 20, when he forced his way into her room and then trapped her there while he confronted her, his very presence was nothing short of an act of cruelty and intimidation. He assaulted her and threatened her. Were it not for the intervention of the third party who allowed her to run downstairs, her suffering would have continued.
[64] The additional offences Mr. Kugarajah committed in P.K’s room prior to his arrest that evening cannot be viewed in isolation. He did not just deny her the peaceful possession of her own room and assault her and threaten her out of nowhere. His actions were a continuation of the violence and oppression that Mr. Kugarajah inflicted upon her beginning with the first sexual assault only days earlier. On September 20, he forced his way into her room, shattering what limited feeling of safety she had left. He physically assaulted her, threatened her and confined her there against her will. She tried to leave several times and each time he pushed her back into the room causing her pain. She yelled at him that she wanted to leave and he still barred her from exiting. Each one of these actions amplified the emotional trauma he had already inflicted upon her. They were committed with callous disregard for her emotional well-being.
[65] In *R. v. Blazevic and Baba*, 2012 ONSC 875, Riccetti J. noted that there is a very broad range of sentences for forcible confinement. The sentence will depend on the extent or degree of the confinement and the circumstances surrounding why and how it occurred. The low end of the sentencing range is normally 12 months jail, and can extend into an upper range of over four years in a penitentiary: see para. 62.
[66] Furthermore, for crimes such as assault and threatening death committed against a vulnerable victim in these circumstances, only a custodial sentence could adequately reflect the principles of deterrence and denunciation.
Mental Health and Potential For Rehabilitation
[67] Mr. Kugarajah does not express any remorse for his actions. He denies the offences occurred. Even after a finding of guilt, this may not be treated as an aggravating factor: see *R. v. Reeve*, 2020 ONCA 381 at para. 12. However, he has shown a total lack of insight into his own substance abuse and mental health or behavioural issues.
[68] Furthermore, Mr. Kugarajah’s mental health issues are not mitigating in this case. In *R. v. Fabbro*, 2021 ONCA 494, the Court of Appeal held that for mental health to be a mitigating factor in sentencing, the offender must show a causal link between their illness and their criminal conduct: see para. 25. No evidence was presented to suggest that his mental health issues somehow explain his actions in this case.
[69] Substance induced psychosis is the most likely cause of his offending behaviour, yet he has never acknowledged he has a substance use problem nor taken any steps to address it. He continues to use a variety of extremely dangerous substances – including cocaine, crack cocaine, and crystal meth. I heard no evidence during the trial or during the sentencing hearing that Mr. Kugarajah was intoxicated or using drugs at the time of the offences committed on P.K. I am thus limited in how I apply this portion of the doctors’ diagnosis when sentencing Mr. Kugarajah. It does shed some light on his potential to re-offend based on his current habits. Where a form of mental illness or behavioural disorder is treatable, but the offender has repeatedly refused treatment for it or taken any steps to address it, that may be lawfully considered. Mr. Kugarajah’s unwillingness to seek out or follow up with treatment voluntarily in the past with respect to his mental health concerns or his substance abuse problem raises concerns about his risk of future dangerousness. In that regard, I do consider that left untreated, Mr. Kugarajah’s risk to re-offend sexually or violently remains significant: see, for example, *R. v. Valentini*, 1999 ONCA 1885, [1999] 132 C.C.C. (3d) 262 (Ontario Court of Appeal); *R. v. Maier*, 2015 ABCA 59 at para. 40; *R. v. Shahm*, 2017 ONCA 872, at para. 8; *R. v Cartwright*, 2019 BCSC 820, at para. 57; *R. v. Diebel*, 2007 ABCA 418 at para. 19.
[70] Mr. Kugarajah is unmotivated to do anything productive with his life in terms of employment or improving his education. He likely malingered during his assessment with Drs. Eid and Dupré and they were unwilling to rule out a coercive paraphilic disorder. While I cannot conclude beyond a reasonable doubt that is what has driven his offending behaviour, it is clear to me that left to his own devices Mr. Kugarajah intends to continue using illicit substances and alcohol. These are associated with the potential for inducing psychotic symptoms and are sometimes linked to acts of violence according to Drs. Eid and Dupré’s report. He thus remains a danger to the safety of the community including any possible future victims such as vulnerable women. His potential for rehabilitation is limited at this time.
Conclusion
[71] I conclude that a fit sentence for Mr. Kugarajah is 7 years’ incarceration broken down as follows:
- 3 years for the first count of sexual assault;
- 3 years for the second count of sexual assault, to be served consecutively;
- 1 year for the count of forcible confinement to be served consecutively to the sexual assault counts; and
- 6 months for the counts of assault, threatening death, and forcible entry, to be served concurrently to all other counts.
[72] I have considered the totality principle. Where an offender is ordered to serve consecutive sentences the cumulative sentence must not exceed his overall culpability nor be “crushing”: *Criminal Code* section 718.2(c); *R. v. Ahmed*, 2017 ONCA 76 at para. 79. I have adhered to the procedure recommended by the Court of Appeal in *R. v. Milani*, 2021 ONCA 567, at paras. 37-38.
[73] But for the application of this principle, I would have imposed a sentence of four years for the second sexual assault. I have thus reduced the total sentence from 8 years to 7 years accordingly. Mr. Kugarajah and other like-minded offenders must know that repeated acts of sexual and physical violence on vulnerable women will not be tolerated.
[74] Mr. Kugarajah is entitled to 20 days’ enhanced credit for the time he spent in custody following his initial arrest. He is also entitled to credit for the period of time he spent in custody following his arrest on the basis of the bench warrant I issued when he absconded from the sentencing proceeding. That is another 14 real days, to be credited as 22 days, pursuant to *Criminal Code* section 719(3.1). 27 days pre-sentence custody will be noted on the information and he will be credited with 42 days’ pursuant to *Criminal Code* section 719(3.1) While I did not hear evidence that he was subjected to lock-downs during this time period, Ms. Langdon very fairly does not dispute that often occurs at the Toronto South Detention Centre. I will therefore reduce the sentence by a further 18 days in recognition of these difficult pre-sentence conditions. The remaining sentence will therefore be 6 years, and 10 months custody. [1]
[75] Mr. Kugarajah’s bail conditions did not involve house arrest or similar restrictions on his liberty and therefore there is no requirement for additional credit as contemplated by *R. v. Downes*, 2006 ONCA 3957 (Ont. C.A.)
Ancillary Orders
[76] Pursuant to *section 487.051(1) of the Criminal Code*, Mr. Kugarajah is ordered to provide samples of bodily substances for purposes of forensic DNA analysis. Sexual assault and unlawful confinement are primary designated offences. The remaining offences except the count of forcible entry are secondary designated offences, and I exercise my discretion to impose a DNA order for those offences as well pursuant to *Criminal Code* section 487.051(3)(b).
[77] These crimes were serious acts of violence. I impose a weapons prohibition order pursuant to *section 109(2) of the Criminal Code* for a period of ten years following his release from custody for any firearm other than a prohibited firearm or restricted firearm, any crossbow, restricted weapon, ammunition and explosive substance. There will be an order prohibiting Mr. Kugarajah from the possession of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life: see *Criminal Code* sections 109(2(a) and (b).
[78] During his time in custody, Mr. Kugarajah is prohibited from communicating directly or indirectly with P.K., pursuant to *Criminal Code* section 743.21(1).
[79] Pursuant to *Criminal Code* sections 490.012(1) and *490.013(2.1), I make an order that Mr. Kugarajah be added to the Sex Offender Registry and that he comply with the Sex Offender Information Registration Act for life.
[80] The victim fine surcharges will be waived.
[81] A copy of my reasons for conviction, sentencing, the PSR, and the report from CAMH shall all be forwarded to the Correctional Service of Canada to assist with the administering of this sentence: *Criminal Code* section 743.2.
Released: October 19, 2022 Signed: Justice Brock Jones
[1] The one year concurrent sentence for forcible confinement will be adjusted to 10 months to respect this credit.
